United States District Court, D. Kansas
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
Named plaintiffs Candace Fox, Anthony Gillespie, and Charles Schreckenbach, individually and on behalf of others similarly situated, brought this action alleging that TransAm Leasing, Inc. and TransAm Trucking, Inc. (collectively referred to as "TransAm") violated various federal and state laws. Plaintiffs moved to certify three of their fifteen claims-two under the Kansas Consumer Protection Act ("KCPA"), Kan. Stat. Ann. §§ 50-626, -627,  and one under truth-in-leasing regulation 49 C.F.R. § 376.12(i).
On June 11, 2014, this court declined to certify plaintiffs' KCPA claims, concluding that individual inquiries would be necessary to establish liability. (Doc. 80 at 13.) However, the court certified plaintiffs' claim under § 376.12(i) (Count 3), concluding that the issue of whether TransAm's mandatory, weekly fifteen-dollar charge for a satellite communications system (the "Satellite Fee") is unlawful involved common proof. (Doc. 80 at 14.)
The parties filed motions for summary judgment. Plaintiffs moved for partial summary judgment on liability as to Count 3, arguing that the satellite communications fee is a forced purchase in violation of § 376.12(i). (Doc. 121.) TransAm denied liability on the forced-purchase claim and argued, inter alia, that it was entitled to summary judgment because plaintiffs did not establish damages at the summary judgment phase. (Doc. 123.)
On April 27, 2015, this court issued a Memorandum and Order ("the Order"), granting plaintiffs' motion on liability as to Count 3, finding that TransAm's required weekly charge for a satellite communications system violated § 376.12(i). (Doc. 134 at 8.) The court also denied TransAm's summary judgment motion on damages, determining that damages are not a predicate of, or an element for, liability under 49 U.S.C. §14704(a)(2). ( Id. at 9.)
Currently before the court is TransAm's Motion for Interlocutory Appeal Certification (Doc. 136). Pursuant to 28 U.S.C. § 1292(b), TransAm requests that the court certify for interlocutory appeal the following two issues: 1) "Is a mandatory charge-back in a Lease a per se violation of 49 C.F.R. § 376.12(i)?" and 2) "May a Plaintiff continue a claim under 49 U.S.C. § 14704(a)(2) past summary judgment without presenting any evidence of damages?" (Doc. 136 at 1.)
The court agrees that these two issues should be certified for interlocutory appeal, with some modification to defendant's characterization of the first issue, as explained below.
I. LEGAL STANDARDS
Pursuant to § 1292(b), district courts have the discretionary authority to authorize an appeal of an interlocutory order where such appeal is not otherwise provided by statute. Swint v. Chambers County Comm'n, 514 U.S. 35, 47 (1995). When analyzing whether certification is appropriate under § 1292(b), the court must find that its order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation[.]" 28 U.S.C. § 1292(b). Certification of interlocutory appeals under § 1292(b) is "limited to extraordinary cases in which extended and expensive proceedings probably can be avoided by immediate and final decision of controlling questions encountered early in the action." State of Utah by & through Utah State Dep't of Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994) (citation omitted). A primary purpose of § 1292(b) is to provide an opportunity to review an order when an immediate appeal would "materially advance the ultimate termination of the litigation." Id.
The Order is not otherwise appealable by statute, satisfying the initial requirement of §1292(b). Thus, the court proceeds to address the three prongs of the § 1292(b) analysis.
A. Controlling Question of Law
TransAm asserts that the two issues it seeks to appeal involve questions of law. With regard to the first issue, plaintiffs agree that whether the Satellite Fee violates § 376.12(i) is a question of law. While the court also agrees that this is a legal question, the court takes issue with the manner in which TransAm characterizes the court's Order in this regard. TransAm states:
It is undisputed TransAm Trucking included a $15 fee in its contract with drivers for the satellite communications system, and that fee was not optional for those drivers who signed up as independent contractors. And the Court's decision on liability was based on those two facts alone. The only remaining question is whether the Tenth Circuit will agree with the Court on its conclusion that any mandatory charge in a Lease ...